Nevada Appellate Court Summaries (12-2-19)
By Joe Tommasino, Esq.
Supreme Court of Nevada:
Confrontation Clause: (1) The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal prosecution the right to confront the witnesses against him or her, but a defendant may forfeit that right if he or she procures the witness’s absence by wrongdoing; (2) to apply the forfeiture-by-wrongdoing exception to the Confrontation Clause, a trial court must find by a preponderance of the evidence that a witness is unavailable, the defendant engaged in conduct that procured the witness’s unavailability, and the defendant acted with intent to procure the witness’s absence; and (3) the trial court must take evidence and argument from the prosecution and defense outside the presence of the jury to reach its finding. The forfeiture-by-wrongdoing exception is not about the reliability of evidence at issue. The exception instead grows out of equitable concerns with allowing a defendant to benefit from his or her own wrongdoing. The purpose of, and the equitable concerns underlying, the forfeiture-by-wrongdoing exception would not be served by a high burden of proof that could instead encourage conduct that undermines the integrity of the criminal-justice system. To apply the forfeiture-by-wrongdoing exception to the Confrontation Clause, the trial court must find by a preponderance of the evidence that the defendant intentionally procured the witness’s absence. In making that determination, the district court must conduct a hearing outside of the jury’s presence to consider the evidence relevant to the forfeiture-by-wrongdoing exception. With respect to the meaning of “procure,” the Supreme Court of Nevada drew a line between a defendant’s mere passive acquiescence in a witness’s decision to be absent and a defendant’s affirmative effort or collusion with a witness to procure that witness’s absence. Distinguishing between passive acquiescence and affirmative action ensures that courts apply the forfeiture-by-wrongdoing exception to the Confrontation Clause only where the defendant does more than merely approve of the witness’s independent decision not to testify. Because it is the rare occasion that an absent witness will be present to explain the reason for his or her absence, the causal relationship between the defendant’s actions and the witness’s absence need not be proven by direct evidence. Rather, circumstantial evidence may be proffered to demonstrate that the witness’s absence is “at the very least, . . . a logical outgrowth or foreseeable result of the [defendant’s efforts].” Anderson v. State, 135 Nev. Adv. Op. No. 56, ___ P.3d ___ (November 27, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/ * On September 5, 2019, an authored opinion by Justice Stiglich was filed in this case. Justice Silver’s separately written concurrence inadvertently did not get filed with the opinion. Accordingly, the Supreme Court of Nevada directed the clerk to withdraw the prior opinion from publication. This substitute opinion has now been issued in its place.
Grand Juries: When a judge suppresses evidence before or during a preliminary hearing and the State has not successfully challenged the suppression ruling, NRS 172.135(2) precludes the State from presenting the suppressed evidence to the grand jury. NRS 172.135(2) provides that only “legal evidence” may be presented to the grand jury. In this respect, the Nevada Legislature has provided greater evidentiary constraints in grand-jury proceedings than are provided in the federal system. “Legal evidence” as used in NRS 172.135(2) means evidence that is admissible under the law. That understanding of “legal evidence” also finds support in the rest of NRS 172.135(2), which excludes “hearsay or secondary evidence” from a grand-jury proceeding. Evidence that has been suppressed because it was obtained in violation of a defendant’s constitutional rights is not “legal evidence” for purposes of NRS 172.135(2) because such evidence is not admissible. The Supreme Court of Nevada recognized that when the justice court binds a defendant over for trial in district court, it is not uncommon for the prosecution and defense to relitigate any suppression rulings the justice court may have made before or during the preliminary hearing. The Court has never questioned the district court’s authority to decide those issues anew after a bindover, and the Court did not do so in this case.
The Nevada Legislature has authorized justice courts to suppress illegally obtained evidence before or during a preliminary hearing. It has also allowed the State to challenge the justice court’s suppression ruling through an expedited appeal to the district court. At the same time, the Legislature has allowed the State to proceed to a grand jury where it previously dismissed a criminal complaint voluntarily and where the justice court has discharged a defendant on a criminal complaint after a preliminary hearing. When the State does so, it starts a new case before the grand jury. But the new proceeding before the grand jury must comply with the evidentiary constraints the Legislature has provided, such as the requirement in NRS 172.135(2) that the grand jury receive “none but legal evidence.” Although the Legislature has provided some exceptions to those evidentiary constraints, it has not made an exception for evidence suppressed by the justice court before or during a preliminary hearing on a complaint. Similarly, the Legislature has not expressly limited the legal effect of the justice court’s suppression ruling when the State starts a new case in the grand jury. It easily could have done so.
Considering the balance struck by the Legislature in providing an expedited appeal of a justice court’s suppression ruling and limiting the evidence that a grand jury can receive, the Court concluded that when a judge suppresses evidence before or during a preliminary hearing and the State has not successfully challenged the suppression ruling, NRS 172.135(2) precludes the State from presenting the suppressed evidence to the grand jury. Because the State in this case did not present the grand jury with anything but the suppressed evidence, the district court manifestly abused its discretion in denying the pretrial habeas petition. Gathrite v. Eighth Jud. Dist. Ct., 135 Nev. Adv. Op. No. 54, ___ P.3d ___ (November 7, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
Restitution: (1) When a district court determines that restitution is appropriate, Nevada law requires the court to set forth the specific amount of restitution in the judgment of conviction; (2) the Supreme Court of Nevada has held that a district court errs if it states in the judgment of conviction that restitution will be imposed in an amount to be determined sometime in the future; (3) the Court has also held that a judgment of conviction with that kind of language is not a final judgment for purposes of an appeal or for purposes of triggering the one-year deadline for filing a postconviction habeas petition; but (4) here, those prior decisions do not allow appellant William Lester Witter to raise direct-appeal issues related to his 1995 capital trial in this appeal from an amended judgment of conviction entered in 2017. The Court cited two reasons in support of its conclusion. First, the judgment of conviction in this case arose from a jury verdict that was appealable under NRS 177.015(3) regardless of any error with respect to restitution in the subsequently entered judgment of conviction. Because Witter could appeal from the verdict, the finality of the subsequently entered judgment of conviction would not have been determinative of the Court’s jurisdiction under NRS 177.015(3). Second, Witter treated the 1995 judgment of conviction as final for more than two decades, litigating a direct appeal and various postconviction proceedings in state and federal court. Prior cases do not stand for the proposition that a defendant can treat a judgment of conviction with an indeterminate restitution provision as final by litigating a direct appeal and postconviction habeas petitions only to later change course and argue that the judgment was never final. Although the amended judgment of conviction is appealable, the appeal is limited in scope to issues stemming from the amendment. Because Witter presented no such issues, the Court affirmed. In this opinion, the Court emphasized that the specific amount of restitution is a weighty matter that must be included in the judgment of conviction when the sentencing court determines that restitution is warranted. In particular, the amount of restitution is not an inconsequential matter when a judgment imposing restitution “constitutes a lien in like manner as a judgment for money rendered in a civil action,” which may be “enforced as any other judgment for money rendered in a civil action,” and “[d]oes not expire until the judgment is satisfied.” The Court also focused on finality, a compelling consideration for courts when reviewing a challenge to a conviction’s validity. A challenge to a conviction made years after the conviction is a burden on the parties and the courts because “[m]emories of the crime may diminish and become attenuated,” and the record may not be sufficiently preserved. Thus, the concern that piecemeal litigation could result from restitution being imposed in an indeterminate amount must be counterbalanced against the interest in finality of a conviction. The Court has long precluded a litigant from arguing that a judgment was not final or that the Court lacked jurisdiction in a prior appeal when the party treated the judgment as final. From 1995 to 2017, Witter treated the judgment of conviction as a final judgment. He therefore is estopped from arguing that the judgment was not final and that the subsequent proceedings were null and void for lack of jurisdiction. Witter v. State, 135 Nev. Adv. Op. No. 55, ___ P.3d ___ (November 14, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
Sentence credits: (1) Nevada law is well-settled that when a district court imposes a sentence in a criminal case, it must give a defendant credit for any time the defendant has actually spent in presentence confinement absent an express statutory provision making the defendant ineligible for that credit; and (2) the Supreme Court of Nevada will not overrule this established precedent. NRS 176.055(1) states in relevant part that “whenever a sentence of imprisonment in the county jail or state prison is imposed, the court may order that credit be allowed against the duration of the sentence . . . for the amount of time which the defendant has actually spent in confinement before conviction.” (Emphasis added.) In Kuykendall v. State, 112 Nev. 1285, 926 P.2d 781 (1996), the Supreme Court of Nevada acknowledged that the word “may” implies discretion but nevertheless concluded that the statute mandated credit for time served before sentencing because “the purpose of the statute is to ensure that all time served is credited towards a defendant’s ultimate sentence.” Since Kuykendall, the Court has repeatedly followed its holding that, under NRS 176.055(1), sentencing courts must award credit for time served in presentence confinement. The reasoning in Kuykendall is consistent with a general rule the Court has long followed: “[I]n construing statutes, ‘may’ is construed as permissive . . . unless a different construction is demanded by the statute in order to carry out the clear intent of the legislature.” (emphasis added). The Kuykendall court did not ignore the word “may” in the statute or that it generally conveys discretion; rather, the court determined that the statute’s purpose demanded a different construction of “may”—that it imposed a mandate. The Legislature’s silence in the years since Kuykendall was decided suggests its agreement with the Court’s construction of the statute, particularly as it has made other changes to the statute. The mandatory construction also comports with notions of fundamental fairness, prevents arbitrary application of the statute, and avoids constitutional concerns with discrimination based on indigency. Thus, the Court declined to overturn Kuykendall and its progeny. Poasa v. State, 135 Nev. Adv. Op. No. 57, ___ P.3d ___ (November 27, 2019). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
Resources
- “Advance Opinions” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
- A list of “Forthcoming Opinions” is available at this link every Wednesday: http://nvcourts.gov/Supreme/Decisions/Forthcoming_Opinions/
- “Supreme Court of Nevada Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Unpublished_Orders/
- “Court of Appeals Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Court_of_Appeals/Unpublished_Orders/
About the author: Joe Tommasino has served as Staff Attorney for the Las Vegas Justice Court since 1996. Joe is the President of the Nevada Association for Court Career Advancement (NACCA).
This article was originally published in the “Five Things” issue of Communiqué, the official publication of the Clark County Bar Association, (January 2020).
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